Understanding Easement Laws in Kentucky: Essential Facts and Guidelines

Easement Laws in Kentucky: Overview

A basic definition of easements. An easement is defined as a right to use another’s land. Easements are very important in the practice of real estate law and are used constantly by Kentucky real estate professionals. By way of example, a landlocked parcel of land along with a piece of adjacent land will have an easement but the two parcels of land do not need to be owned by common parties. Many times individuals and businesses will create easements by agreeing to allow other parties to utilize their land. Colorfully, the Encyclopedia Brittanica states that an easement is an "accursed thing" in that an individual does not own an interest in the land so there is not interest to sell. Therefore, when looking at real estate for sale, one of the first things a buyer or their attorney should investigate is whether there are any easements. Easements are generally enforceable against future owners of the real property. There are several different types of easements, the most common being easements by necessity, express easements, easements by prescription, implied easements, easements by condemnation, and easements by implication.
How easements work in the legal process. Certain types of easements may be extinguished but only when the facts surrounding the creation of the easement have changed to the extent that the easement should no longer exist . Again, by way of example, for an easement by prescription, courts have held that a land user cannot continue to use the land for those purposes for which they acquired the easement past the original intent of the easement. Also, individuals have been held to lose their easement rights if the owners of the property subject to the easement acquiesces to the establishment of a fence that closes off the easement. In that instance, the easement was extinguished because the fence prevented the easement holder from exercising their rights. An express easement is created by a deed or other means in writing. An easement is created by prescription in Kentucky if the following elements exist: (1) adverse use of the person claiming the easement under a claim of right, (2) continuous use for the necessary amount of time (15 years in Kentucky), and (3) open and notorious use with knowledge of the owner. Kentucky also recognizes continuance of an easement under the doctrine of lost grant. A lost grant arises when a person’s title or other muniments of title to the property is lost, an open and notorious assertion of claimed rights by the claimant over the servient estate is made, and the claimant maintains his claim for the required period. A claim of an easement by prescription may also arise if it is the result of governmental action or by a private party. There are several other methods for extinguishing easements in addition to changing conditions.

The Different Types of Easements in Kentucky

On the eastern edge of Kentucky, a property owner might decide to sell an easement of its property to its neighbor, in order to permit the neighbor to lay a pipeline or construct a cell tower. In Madison County, in an upscale section of Richmond near the interstate, perhaps an easement holder will sue to have a neighbor’s shed removed from an easement by the river.
In addition to the above "easements of necessity" and those in the context of pipelines, cell towers or the like, in Kentucky there are several different types of easements which may be created in the Commonwealth.
First, an easement appurtenant is one that is owed to and benefits another parcel of land. An example would be a power company that has an easement in a particular area of land to run high tension wires across a parcel of land. The easement runs with the land, painfully limiting any present and future use of the property for the benefit of the neighbor. Also, this type of easement will run with the land for the benefit of the neighbor even upon sale of the parcel to any third party. That is to say, the neighbor will have the right to use the easement even if the owner of the benefited parcel sells to a third party.
Second, an easement in gross is one that is a personal right to enter another persons land. A common example would be a hunting or fishing easement. The benefit does not run with the land, although it will run with the owner of the parcel so long the owner owns the property that is burdened by the easement.
An express easement is one that is agreed to between parties, and is spelled out in deed. An easement in gross can be express as well as an easement appurtenant.
An implied easement arises solely by operation of law. One example would be the right to cross a property to reach a highway when there is no other way out of the property.
Finally, temporary easements exist for a specific period of time, such as for construction work like seismic testing. This type of easement is important in the context of shale oil development in Kentucky.
Kentucky also recognizes covenants, which is a term used in property law to refer to a type of control over how the real estate will be used, which is recorded with the county clerk’s office. Unlike an easement, in which those holders of the right to use the land enjoy a benefit, a covenant is one that is restrictive; the right to use the land is limited in some manner to preserve the character of the land.

Easements in Kentucky: Key Legal Requirements

The State of Kentucky requires that the following documents be recorded in the County Clerk’s office if a property owner intends to use any of their property to deliver or receive utilities (a power line, for example), or if they intend to allow someone else to use a part of their land. These documents outline an easement. As a general rule, all easements established in Kentucky should follow these steps:

• A written agreement between an owner of property and the utility company must be made. Written agreements are typically prepared by the utility company itself. This written agreement, sometimes as simple as a required easement document, will contain the details of the utility line or lines, including the length, width, place of beginning and place of ending of the line or lines.
• The number of feet that the utility line(s) from the road it is nearest. For example, if the utility line was a power line as pictured below, the written agreement would need to contain how far away the power line footage started from the roads at each end of the line (starting from the horizontal viewing point, of course).
• A signature in the presence of a Notary Public for the owner of the property involved. Although this is usually required, the Notary Public can usually be dispensed with if the property owner is okay signing an affidavit in front of two (2) witnesses who have also signed an affidavit.
• A sketch of the route of the utility lines is also often included with the written agreement. It doesn’t have to be an accurate map, but it should clearly designate the utility line or lines which are the subject of the easement, and identify the property owner, the utility company and the County Clerk’s office.
• Typically, there are no other stipulations required by Kentucky law.

How to Resolve Easement Disputes

The most common disputes between dominant and servient estate owners in Kentucky involve easements and raceways. Other conflicts occur where the use sought by the dominant estate owner exceeds the scope of the easement. Finding a resolution to such conflicts can be complex, but the following guidance may help.
Easements Several common factors underlie disputes associated with easements in Kentucky.
Waterways Prevailing legal theory holds that water is a common resource, not a subject of exclusive ownership. State law preserves the rights of local government agencies to provide for changing water and drainage patterns, but with appropriate safeguards so that property rights are protected both to the upper and lower property owner.
Others Other conflicts arise • Where pumping stations or other similar facilities will be utilized • Where the location of the easement is not clear •5or excavation of ditches • Treated timber • Underground storage tanks • Site specific state or local regulations • Where complications arise from the manner in which easements were originally acquired, such as transfers of the servient estate, or the merger of the two estates
RESOLUTION The very nature of easements, especially those granted by easement agreements, makes it more likely that the parties to the easement will seek mutual accommodation of the way the easement is exercised as opposed to simply resorting to litigation. However, if conflicts cannot be resolved amicably, litigation is often required to determine the rights of the respective parties. In Kentucky the parties may ask the Circuit Court to resolve an easement dispute. The Court will interpret the scope of easements, and may even order that the easement come to a specific end date if necessary.
BUSINESS CONSIDERATIONS The best way to minimize the possibility for easement conflict is to treat the easement in business terms as much as possible. By this we mean: • Define each party’s rights and responsibilities as specifically as possible. • Provide for the effective transfer of rights and responsibilities if property ownership changes. • Take into account as many possible third-party implications of the easement as possible.

Modifying and Terminating Easements

The duration and location of an easement may also be modified by the approval of the circuit court. If a servient owner is aggrieved by the location of the easement or if the dominant owner has misused it, the court may relocate it. The easement is modified to reflect the location of the new easement as decided by the court. Further, if the servient land owner requests modification for convenience, the court may require the dominant owner to relocate the location of the easement.
An easement should terminate if the dominant estate becomes extinct, meaning that it has ceased to exist as an identifiable, separate property . In Kentucky, an easement terminates if it has not been exercised in five years by the dominant estate or not been used with the intention of being used after five years. If the dominant estate has used the easement for a required period of time, the easement is permanent until the circumstances requiring its termination abate.
If there was no general grant of an easement, it may terminate by non-use. To note, the non-use must continue for a full statutory period. The non-use of an express easement creates a presumption that the easement terminated.

The Effect of a Property Easement on Real Estate Value

From a property value perspective, easements in Kentucky can have both positive and negative ramifications for real property. In general, an easement constitutes a property restriction and the term easement indicates a "limited right to use" an adjacent parcel. (An exception of this generalization is a conservation easement, which restricts what can be done on an owner’s property.) It is therefore logical that an easement will reduce the overall value of a property burdened by an easement. However, the value that an easement will reduce a property depends on the type and scope of the easement.
Some easements, like those granted to utility companies, are beneficial to both the landowner and the utility company, despite the fact that they will negatively affect the value of the property. After refuting a rebuttable presumption that grants to utility companies of rights to locate their utility facilities on private property, the general session jury instructions holds that "damage to private property by the operation of utility facilities is not an element of damage". The instruction requires that the jury consider the value of the property without the easement and then again with the easement to determine how much the easement has diminished the property’s value. This suggests that the easement’s impact on property value can be slight but, nonetheless, pernicious.
Also, there are some easements that increase the real property value, such as a cross-easement for reciprocal use. A cross-easement allows "one property owner to use or control a portion of another property owner’s land" and is created by express grant or necessity. This type of easement is common in shopping centers. A recent Kentucky case, Parkway Plaza Associates v. Jefferson County, adopted the Restatement sec. 2.1 in its entirety to help define this type of easement. In that case, a shopping center sought a declaration that it had a right to cross-use an adjacent outparcel loading area that had been constructed by the outparcel owner. The court noted that the outparcel would be able to use the area for delivery trucks that need at least twelve feet of clearance in an aisleway, while the shopping center would use the area for moving trucks and other large vehicles. Because both parties would suffer significant damages if the court determined that the cross-easement did not exist, the easement was deemed necessary. Thus, in certain cases, easements can be beneficial.

Seeking Assistance from Professionals

When property issues are at hand, whether a matter of inheritance or a negotiation between neighbors, the simplest course of action is to consult with a legal professional. Consulting with an attorney when it comes to easements is especially crucial, as the laws in Kentucky are complex and a legal professional’s expertise can save you time, money, and stress. We always recommend that an attorney be consulted when it comes to probate and estate matters. An attorney can give expert advice, review any legal documents that are required, and file all papers in court on your behalf. An attorney will ensure that you not only meet Kentucky’s specific requirements when it comes to easements but also make sure that you have met all necessary requirements to ensure your rights. If your easement is specific to utility access , getting an attorney before making decisions regarding easements surrounding your property is crucial to ensure that you don’t negatively impact the utility’s ability to do their job. Ensuring that you have consulted with an attorney before making alterations to easements on your property ensures that you are obeying all of the restrictions that are put upon the easement.
There are some important ways to prepare for consulting with an attorney. First, we always recommend writing down all of your questions for your attorney prior to your appointment. You should also bring together any relevant documents that you may want your attorney to read. Bringing an organized gathering of documents will cut down on time wasted during an appointment with an attorney and will help your attorney assist you better.
It is a good idea to consult with an attorney even if you don’t believe there are any easement issues present on your property. Taking the time to engage an attorney upfront can save time and stress later. Thoroughly examining all aspects of your property footprint will prevent any surprises in the future.